Common Law Marriage Defined
Common law marriage is when two people live together and agree to be married as husband and wife. It is both a legal and an evidentiary issue as it can carry such rights as marital property, insurance benefits, or inheritance.
Many states have overruled any instances of common-law marriages within their borders, so entry for the concept varies widely by jurisdiction. Illinois abolished common law marriage, except in three notable exceptions, which do not apply in a divorce setting:
The State of Illinois still does recognize common law marriages from other states, provided those states recognize it with a similar legal standard. Illinois statute and court opinions reject any notion that common law marriages hold sway in Illinois just because people cohabitate in the state .
To enter into a common law marriage in Illinois, under separate supporting judicial opinions, you have to live in a state that both recognizes common law marriage and where you would be able to establish one as such, were you there.
It is a common misconception that living together for a period of time can establish a common law marriage. To prove that you did so in Illinois, you would need to demonstrate that it has satisfied the judicial elements of a common law marriage as cited in In re Marriage of Dugan (2006). According to Dugan, the common law relationship has the following legal requirements:
Under these requirements, it is very difficult to satisfy the requirement of mutual agreement and consent without some supporting evidence like testimony, affidavits, or written correspondence; beyond that demonstrating actual cohabitation, sexual relationship, and mutual performance of marital duties.
Illinois’ Law Regarding Common Law Marriage
Illinois does not recognize common law marriages, as current Illinois law has specified that no such marriages are valid in Illinois. This was not always the case and at one time Illinois did recognize common law marriages. Because Illinois did recognize common law marriage in the past and allowed previously accepted marriages to remain in force a person may have been required to deal with common law marriage when getting married in Illinois if an effort was made to marry a second time after being married by common law marriage. In those situations, Illinois law would have required the couple wishing to marry again to prove that their first marriage was legally dissolved.
Although not valid marriage in Illinois, the act of entering into a common law marriage is not in it of itself illegal. For this reason, entering into a common law marriage in another state may be acceptable if the couple later moves to Illinois. Illinois will accept the first state’s ruling that established the common law marriage and the result would be the legal recognition of the marriage under Illinois law.
What this Means For Couples Relocating to Illinois
So, a common law marriage formed in another state is not automatically recognized in Illinois. This is the law in Illinois pursuant to 750 ILCS 40/4, where it states: "The change of residence of persons who have lived together as husband and wife in this State to another jurisdiction shall not affect their marital status." 750 ILCS 40/4 ("An act performed outside this State by persons who are physically present in this State with the good faith intent to be married to each other and who would like to have their marriage recognized if they were in a state that recognizes common law marriage shall have the effect of establishing the relationship of husband and wife between such persons.") (emphasis added) If a couple is common law or common law married in another state and that couple moves to Illinois, they are not recognized as being married in Illinois.
In common law marriage cases, you generally have a couple living together and holding themselves out to be married or being looked at as married by others. Given that this is an area of the law that is replete with scheme and fraud, the law also requires the couple to have a mutual and exclusive intent to be married. In other words, it’s generally not enough to just live together and hold out as married while at the same time telling everyone that you are not married. An area of contentiousness in these type cases is whether the parties to the alleged marriage only intended to live together or actually intended to marry even though they never did marry.
A common law marriage also ends in divorce or dissolution under the law, just like a formal marriage. If a common law marriage has arisen, Illinois will view the marriage the same as a formal marriage. The attached responsibilities (including the duty to financially support the marital relationship) and rights (such as the right to stay married) are the same. Therefore, there are specific life decisions made by married parties that are not so easily undone after a marriage ends; and a common law divorced party has the same rights as a formal marriage in this regard.
Marriage is a contract how ever it exists. A married party in Illinois, including those that are married under common law statute, can file for divorce under the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/. Another aspect of the common law marriage statute that is frequently overlooked is that while a common law married couple may establish the relationship in a non-divorce case, they must then enforce their Rights in front of an Illinois judge in a divorce case.
In conclusion, Illinois will not recognize a common law marriage created in another state before the couple comes to Illinois.
Exceptions for Common Law Marriage in Illinois
While common law relationships may have been widely accepted and practiced in the past, modern society has shifted towards a more bureaucratic legal system. For many couples, a marriage license is an important way of signifying their commitment or legal relationship. In Illinois, couples that want a legally recognized relationship but do not want to be married have two options: civil unions and domestic partnerships.
Civil Unions
The Illinois Act Relating to Civil Unions went into effect on June 1, 2011. The biggest difference between a civil union and a marriage license in Illinois is that a civil union license can be issued to same-sex couples. Under the law, a civil union is defined as the relationship between two people (a minor and an adult cannot enter into a civil union) who are at least 18 years of age and live together and "have chosen to share one another’s lives and intend to do so indefinitely." Elopements can be just as common with a civil union, just like a marriage. Couples are required to buy a civil union license before participating in the union ceremony, just like a marriage. However, the unions are also just as legally binding as a marriage and can be dissolved under the law if the relationship should dissolve. All of the same rights and benefits in Illinois that apply to a husband and wife in a marriage also apply to parties to a civil union. However, current Illinois law that pertains to a spouse also applies to a civil union partner; the result is that a civil union partner has the same legal rights as a spouse and vice versa . Civil unions are quickly becoming the choice of many deluded couples in Illinois.
Domestic Partnerships
Domestic partnerships are a relatively new proposal for Illinois and have become synonymous with the gay rights movement in the state. The Chief sponsors for the bill that was ultimately met with failure were Mike Fortner (R-West Chicago) and the now-retired Daniel Biss (D-Evanston). It would have opened up thousands of state laws to same-sex couples, but it did not meet with enough support from the Illinois General Assembly. While there is presently no domestic partnership legislation in Illinois, there are provisions for domestic partners in the Chicago domestic relations code. Domestic partnerships are considered a legally recognized relationship between two persons of the same sex. Domestic partners are afforded the same rights and benefits as married couples under Chicago domestic law, including equitable benefits and health insurance. Domestic partnerships are open to all same-sex couples in Illinois. However, only fit and proper persons over 18 years of age can enter into a domestic partnership in Chicago. Under the law, domestic partners are neither parents nor foster parents of any children of a former partner in the relationship. Unlike civil unions, domestic partners do not have to file a petition for dissolution under the law if their relationship ends.
Non-Marital Relationship Rights
To protect your rights in a non-marital relationship, Illinois provides some tools to assist. A cohabitation agreement between the parties can specify the property rights you are reserving for yourself and for the other partner. This is a legally binding contract that spells out who owns what and what happens to the property upon dissolution or death of one of the partners. You will want an experienced lawyer who is familiar with creating and negotiating cohabitation contracts to discuss your particular situation and decide whether you should draft such an agreement.
Another way to protect your rights in a non-marital relationship is to create wills and trusts stating how you want property disposed of on your death, including what you want done in the event you die while property is held in joint names or as tenants by the entirety. You may wish to have joint bank accounts, purchase life insurance, or designate a transfer on death beneficiary on your real estate or some other property. If you expect to jointly contribute to the purchase of large purchases, an agreement in writing is crucial to clarify the parties’ respective rights to the property in case of death or when the parties separate.
Looking to the future, you may wish to consider provisions in corporate and limited liability company operating agreements or bylaws to protect your rights as a shareholder and your ability to receive the benefits of stock ownership. Limitations on transfer, buy-sell agreements upon death or divorce, or incorporation of cohabitation agreements to protect your rights in the business are all considerations lawyers can assist you in drafting.
Common Misunderstandings Concerning Common Law Marriage
Despite being outlawed in Illinois, many people still hold onto the common belief that common law marriages are recognized as valid options for their relationships. As a result, they may make financial and legal choices that can affect them pretty seriously in the long run.
In Illinois, common law marriages are not allowed. The Illinois Marriage and Dissolution of Marriage Act states that only a legal marriage is permitted in the state. Multiple Illinois appellate court cases have reinforced this mandate. This means that cohabitation is not enough to constitute a common law marriage, and friends and family members cannot help to validate an informal marriage either.
Some people are under the impression that living together for an extended period of time can be considered a common law marriage by the state. This is incorrect. The courts in Illinois could potentially look into the intentions of the couple about forming a legal marriage, but the threshold for even bringing such an idea to court is much higher than informal cohabitation.
If a couple in Illinois desires a legally-recognized marriage, they must go through all of the legal steps required for marriage , including obtaining a marriage license and having the marriage solemnized by an officiant.
In some states, people can obtain spousal support and property rights by at minimum living together with exclusive cohabitation and holding themselves out to others as spouses. While the law requires that the couple live together for a period of time, there is no absolute time limit that would create defaults or automatic entitlements for support and property. Indeed, some of the factors that might be considered when determining whether or not a common law marriage existed include:
While some states still permit common law marriages, Illinois is not one of them. For all intents and purposes, if you are not formally married, you do not have the tenets of a marriage under the law. If you seek out spousal support or want to divide property, you will not have a claim against your former partner. You can only pursue such claims by proving that you had a formal marriage that involved a government recognition of your union.
Any other type of formal arrangement will not be eligible for consideration in a divorce.